Aussieker v. Goldwater Bank, National Assoc.

Opinion

Sean C. Wagner (Pro Hac Vice) Sean.Wagner@wagnerhicks.law Meagan L. Allen (Pro Hac Vice) Meagan.Allen@wagnerhicks.law Adam L. Wilson, (Pro Hac Vice) Adam.Wilson@wagnerhicks.law WAGNER HICKS PLLC 831 East Morehead Street, Suite 860 Charlotte NC 28202 Telephone: (704) 705-7538 Facsimile: (704) 705-7787 John Forest Hilbert, Esq. (SBN 105827) jhilbert@hscallaw.com Joseph A. LeVota, Esq. (SBN 226760) jlavota@hscallaw.com HILBERT & SATTERLY LLP 409 Camino del Rio S. #104 San Diego, California 92108 Telephone: (619) 795-0300 Facsimile: (619) 501-6855

Attorneys for Defendant Goldwater Bank, N.A. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

MARK AUSSIEKER, individually and on Case No. 2:22-CV-00851-MCE-DB behalf of all others similarly situated, Plaintiffs, ORDER GRANTING DEFENDANT GOLDWATER BANK, N.A.’S vs. RENEWED MOTION TO DISMISS PLAINTIFF’S AMENDED GOLDWATER BANK, N.A., Does 1-10 COMPLAINT [ECF No 36] inclusive Defendant.

MARK AUSSIEKER, individually and on behalf of all others similarly situated, Case No. 2:22-CV-00851-MCE-DB

Plaintiffs, ORDER GRANTING DEFENDANT vs. GOLDWATER BANK, N.A.’S RENEWED MOTION TO DISMISS GOLDWATER BANK, N.A., Does 1-10 PLAINTIFF’S AMENDED COMPLAINT [ECF No. 36] inclusive Defendant.

The Court having reviewed the submissions of the parties regarding Defendant

Goldwater Bank, N.A.’s (“Goldwater”) Renewed Motion to Dismiss Plaintiff’s Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 36) finds that Plaintiff’s Amended Complaint (ECF No. 4) fails to state a claim upon which relief may be granted. For the reasons set forth below, Plaintiff’s Amended Complaint is DISMISSED WITH PREJUDICE and without leave to amend.1 Plaintiff’s Amended Complaint seeks relief under the Telephone Consumer Protection Act (“TCPA”), specifically 47 U.S.C. § 227(b)(1)(A) and § 227(b)(1)(B). In his Opposition, Plaintiff admits that his Amended Complaint does not plausibly allege that the single, text message alleged was sent using an automatic telephone dialing system (“ATDS”) as that term has been interpreted by the Ninth Circuit following the United States Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 (2021). That is, Plaintiff concedes (and his allegations demonstrate) that Goldwater’s dialing equipment did not generate telephone numbers using a random or sequential number generator, as is required to state a claim under 47 U.S.C. § 227(b)(1)(A). See Borden v. eFinancial, LLC, 53 F.4th 1230, 1234 (9th

1 Plaintiff’s Request for Judicial Notice (“RJN”) is DENIED. ECF No. 40 (RJN). Cir. 2022); Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5043724, at *1 (Oth Cir. Aug. 8, 2023). Further, Plaintiffs contention that the alleged text message utilized “an artificial or prerecorded voice” under 47 U.S.C. § 227(b)(1)(A) or § 227(b)(1)(B) is unsupported by law or any reasonable reading of the TCPA. See, e.g., Trim v. Reward Zone USA LLC, 76 F.4th 1157 (9th Cir. 2023). As both causes of action alleged in Plaintiff's Amended Complaint are legally insufficient, Plaintiff's Amended Complaint must be dismissed for failure to assert a plausible claim for relief pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff concedes he cannot amend in order to state a valid claim. Accordingly, Defendants’ Motion to Dismiss (ECF No. 36) is GRANTED without leave to amend. The Clerk of the Court is directed to close this case. Dated: May 13, 2024 J ate IES NK SENIOR UNITED STATES DISTRICT JUDGE 3.